SOMERVILLE, J.
(1) When the owner of a homestead which is greater in value than $2,0C0, or in area than 160 acres, sells a- portion thereof, leaving, including the dwelling and land contiguous thereto, the maximum value or area allowed by law for the homestead, this amounts to the selection of a homestead to the exclusion of the alienated tract, and the provisions of the Code (section 4161) with respect to the alienation of homesteads have no application. This proposition does not seem to have been heretofore considered by this or any other court, but its propriety cannot be doubted, and it is in harmony with our statutes and decisions. — De Graffenried v. Clark, 75 Ala. 425; Marks v. Wilson, 115 Ala. 561, 22 South. 134; Jaffrey v. McGough, 88 Ala. 648, 8 South. 333.
(2) Hence respondent’s verbal sale of the 1-acre tract to complainant was sufficient to give him an equitable title, subject only to the wife’s inchoate dower right. If complainant chose to accept a conveyance of the land with that incumbrance on it, the failure or refusal of the wife to execute the deed was no obstacle to specific performance.
Declining to grant relief to complainant by specific performance, because not reasonably satisfied by the evidence to that conclusion, the chancellor nevertheless found that complainant was [566]*566entitled to recover of respondent a money value'of $35 received by respondent as the consideration for a conveyance of the land, for enforcing the collection of which a lien was decree on the land itself. The propriety of this decree is challenged: (1) Because no allegations of the bill make a case for such relief; and (2) because, in any event, the evidence does not support the necessary findings of fact.
(3) The first objection is based mainly on the theory that the allegation that the purchase price agreed on and paid was $50 is fatally variant from the fact shown, namely, that the real consideration for the land was the difference in the value of the mares exchanged between them.
For the purposes of this proceeding, it is of no consequence whether the agreed consideration was expressed in terms of cash or of some equivalent in property or other element; nor can it matter that the consideration proven is less than that alleged, if it be fair and reasonable. The averment of a consideration of $50 in the bill was evidently but an attempt to state the value in money of what was actually paid in property, and “proof of a different consideration which does not change the essential rights of the parties, nor destroy the right of redress, cannot be treated as a variance.” — Cooper v. Parker, 176 Ala. 122, 125, 57 South. 472, 473. The first objection is therefore without merit.
(4, 5) The evidence convinces us that the actual consideration for respondent’s agreement to sell and convey the land to complainant was the difference between the values of their respective mares. We are further satisfied that this difference was not less than $35, and that this was at least as much as the acre of land was worth. These conclusions of fact, if no.t avoided by the defensive matter offered by respondent, fully entitle complainant to the specific performance prayed for. The defenses urged are: (1) That there was a partial failure of consideration, in that the mare traded to respondent was warranted to be with foal, and in fact was not; and (2) that, a dispute having arisen between the parties in that regard, a new contract was substituted for the original agreement, by way of complete novation, by which complainant agreed to pay respondent $31.50 additional as an inducement to respondent’s execution of the conveyance, which complainant has not paid. The burden was on respondent to establish each .of these defenses. As to the first, we think the [567]*567weight of the evidence is against it. As to the second, while it is shown without dispute that complainant, finding that respondent would not execute the agreement, did offer that amount for a conveyance of the land, yet we are by no means reasonably satisfied that this was a compromise in novation of the original contract. Indeed, the evidence, fairly considered, tends strongly to show the contrary. ■
(6) The conclusion of the whole matter then is that complainant was entitled to a specific performance of the agreement to convey by respondent. The chancellor, however, denied this relief, but retained the bill in order to do equity by compelling respondent to restore to complainant the value paid by him, and for which he had no equivalent. This was in accordance with the well-established practice of chancery courts in such cases; complainant having an equal equity to recover the consideration paid by him, or to have compensation for valuable improvements made by him. — Aday v. Echols, 18 Ala. 353, 52 Am. Dec. 225; Irwin v. Bailey, 72 Ala. 467, 476; Powell c. Higley, 90 Ala. 103, 7 South. 440; Birmingham Nat. Bank v. Roden, 97 Ala. 404, 11 South. 883; Jones v. Gainer, 157 Ala. 218, 47 South. 142, 131 Am. St. Rep. 52; 30 Cyc. 2037-2039.
(7) If it was error to grant this form of relief, it was error only as against complainant. Respondent, having refused to execute the contract which the evidence established against him, created a condition which would have suppprted the decree under a special prayer for such relief. — 39 Cyc. 2031d. He cannot complain that it was granted as an alternative to specific performance, under the general prayer and the general power of the court.
The decree of the chancery court will therefore be affirmed.
Affirmed.
Anderson, C. J., and Mayfield and Thomas, JJ., concur. Free access — add to your briefcase to read the full text and ask questions with AI